[Cite as State v. Steele, 138 Ohio St.3d 1, 2013-Ohio-2470.]

T HE S TATE OF O HIO , A PPELLANT AND C ROSS -A PPELLEE , v . S TEELE , A PPELLEE AND C ROSS -A PPELLANT . [Cite as State v. Steele, 138 Ohio St.3d 1, 2013-Ohio-2470.] Criminal law—Offenses—Intimidation—R.C. 2921.03—Abduction—R.C. 2905.02(A)(1) and (A)—Police officer not exempt from prosecution for offense of intimidation for abusing power to interrogate or for knowingly filing a materially false complaint to intimidate or influence witness—Jury instruction defining “privilege” in context of police officer’s privilege to arrest and detain is not plain error when instruction is identical to definition of “privilege” in R.C. 2901.01(A)(12). (Nos. 2011-2075 and 2011-2178—Sub mitted March 12, 2013—Decided June 18, 2013.)
A PPEAL and C ROSS -A PPEAL from the Court of Appeals for Hamilton County, No. C-100637, 2011-Ohio-5479.

____________________ O’N EILL , J. {¶ 1} In this appeal and cross-appeal, we are presented with two issues. First, we consider whether police offi cers are exempt from prosecution for the offense of intimidation when accused of abusing their power to interrogate. We hold that R.C. 2921.03 provides no such exemption. A police officer may be convicted of intimidation when the state pr esents evidence that the police officer knowingly filed a materially false complain t in order to influence or intimidate a
witness. {¶ 2} Second, we consider what instructi ons a trial court must provide to a jury on the definition of the “privilege” exception to the offense of abduction when the defendant is a police officer accu sed of abusing his pr ivilege to arrest
and detain. We hold that when a trial cour t’s definition of “privilege” is identicalS UPREME C OURT OF O HIO

2 to the definition provided in R.C. 2901.01(A)(12), such an instruction does not constitute plain error. Factual and Procedural Background {¶ 3} On May 26, 2009, police officer Julian Steele was indicted on ten counts, including abduction, intimidation, exto rtion, rape, and sexu al battery. The charges stemmed from Steele’s investigati on of a series of six robberies that occurred in the same neighborhood in Cinci nnati, Ohio. Shortly after one of the robberies, a resident in the neighborhood sa w a vehicle driving suspiciously. The resident provided the vehicle’s license-p late number to police, who linked the
vehicle to A.M. {¶ 4} The state presented evidence at trial that once Steele became aware that A.M. had children, he went to thei r school, arrested three children, and had
their lockers searched. One of those ch ildren was R.M. Steele took R.M. into custody by handcuffing him and placing h im in the caged back seat of a police cruiser. Steele told the school employees not to tell A.M. that he had taken R.M. into custody. Steele also told school em ployees the next day that he knew that R.M. was innocent. Although R.M. did not fit the physical descriptions of the robbers, Steele took R.M. to the police st ation and interrogated him extensively, using threatening and coercive tactics, prior to any attempt to offer him his constitutionally guaranteed Miranda warning. Specifically, after R.M. flatly and strongly denied knowledge of or involveme nt in the robberies, Steele threatened R.M. by telling him that his mother would be jailed and his siblings would be taken away if R.M. did not confess to the robberies. R.M. succumbed to the
coercion and made a false confession. St eele then Mirandized R.M. and taped his
confession. {¶ 5} Using R.M.’s false statement, Steele was able to formally bring charges against R.M. for the six robberies and had R.M. imprisoned in juvenile
detention.January Term, 2013

3 {¶ 6} While R.M. was in detention, Steele repeatedly persuaded R.M.’s mother, A.M., to meet with him under the guise of talking about R.M.’s case and eventually convinced her to come to his ap artment. Steele stated to A.M. that he would be able to get R.M. out of dete ntion, but that it would involve quite a “process.” During one of A.M.’s visits to Steele’s apartment, Steele asked her to engage in sexual activity with him. A.M. testified that she complied with Steele’s requests because she believe d that he had the power over R.M.’s release. {¶ 7} While R.M. was spending nine days in detention, Steele repeatedly told the assistant prosecutor that he knew that R.M. had nothing to do with the robberies, but that he had locked R.M. up in order to compel A.M. to cooperate with the investigation. The prosecutor mistakenly assumed that R.M. had been sent home on the day of his arrest. Whe n, on the ninth day, she discovered that R.M. was still in lock-up, she immediatel y had R.M. released and dismissed his charges. The prosecutor’s office then had Steele questioned about his actions. The state submitted a recording of the questioning, during which Steele admitted that he had excluded R.M. as a suspect prior to locking him up. Steele admitted that he thought R.M. had given a false confession. Steele admitted that he had told A.M. that he did not think R.M. committed any of the robberies. Steele
stated that he does not make arrests so lely based on witness identification, but instead he utilizes the technique called “bullshitting,” which apparently refers to arresting people on less than probable cause in the hope that something promising
will result. {¶ 8} Steele was charged with two count s of abduction, three counts of extortion, two counts of ra pe, one count of sexual battery, and two counts of intimidation, all with firearm specifications. A jury trial was held, and Steele did not testify. {¶ 9} At the close of the evidence, the parties and the court discussed alterations to the proposed jury instructi ons. The court provided the revised juryS UPREME C OURT OF O HIO

4 instructions to the parties, and counsel fo r Steele stated that th e instructions “look fine, and they incorporate all of the ch anges that we discussed yesterday.” Pursuant to the agreed-upon jury instruc tions, the trial court provided the jury with definitions for “privilege,” “arre st,” “probable cause,” and “reasonable grounds,” as they are used in R.C. 2905.02, 2901.01(A)(12), and 2935.03. {¶ 10} The trial court defined “privile ge” as “an immunity, license, or right conferred by law or bestowed by ex press or implied grant or arising out of status, position, office, or relationship or growing out of necessity.” The trial
court stated that when an arrest is ma de without probable cause, it is an illegal arrest. The trial court instructed that probable cause exists “when an officer has knowledge of existing facts and circumst ances which would warrant a prudent police officer in believing that a crime was committed, and that the person to be arrested has committed the crime.” The trial court then explained that a police officer has the authority to arrest and detain a person if the police officer has reasonable grounds to believe that the person is guilty of committing a crime. Steele had no objections to th e foregoing explanations. {¶ 11} The jury found Steele guilty of abduc tion of R.M. in violation of R.C. 2905.02(A)(1) and (A)(2) and intimidati on of R.M. in violation of R.C. 2921.03, each with an accompanying firearm specification. The jury acquitted Steele on the remaining charges. He received a prison sentence of five years and an additional five years of community control. {¶ 12} On appeal, the First District Court of Appeals rejected Steele’s arguments that his intimidation convic tion was not supported by sufficient evidence and was against the manifest weight of the evidence and affirmed the conviction. The appellate court reversed Steele’s abduction c onvictions, however, holding that the trial court’s instructions to the jury on the offense of abduction were fatally deficient. The appellate court held that the trial court should have explained to the jury that a police officer loses the privilege to arrest and detain aJanuary Term, 2013

5 citizen only if he does not have a good-faith belief that there is probable cause for the arrest. “In essence,” the court held, “the jury was instructed that an officer loses the privilege to arrest when the ar rest is made without probable cause.” Id. at ¶ 9. The appellate cour t concluded that because St eele’s conviction hinged on whether Steele’s actions were in good faith, the deficiency in the instructions rose to the level of plain error, requiring reversal despite Steele’s agreement to the
instruction. {¶ 13} The appellate court di smissed Steele’s sufficiency and manifestweight arguments regarding the abduction convictions as moot. Finally, the appellate court reversed all of the gun specifications, as no evidence had been presented at trial that Steele had a fi rearm on or about his person when he committed the offenses. The appellate court thus partially reversed and remanded the case for a new trial on the charges of abduction. {¶ 14} Both the state and Steele sought th is court’s discretionary review. In case No. 2011-2075, we accepted the stat e’s appeal regarding the appellate court’s reversal on the issue of jury inst ructions on the offense of abduction. 131 Ohio St.3d 1472, 2012-Ohio-896, 962 N.E.2d 803. In case No. 2011-2178, we accepted Steele’s delayed appeal regardin g his intimidation conviction. 132 Ohio St.3d 1422, 2012-Ohio-2729, 969 N.E.2d 270. The two cases were consolidated, and the state’s appeal was designated a cross-appeal. Id. Analysis
Intimidation and Police Officers {¶ 15} R.C. 2921.03(A) provides:

No person, knowingly and by force, by unlawful threat of harm to any person or property, or by filing, recording, or otherwise using a materially false or fraudulent writing with malicious purpose, in bad faith, or in a wanton or reckless manner,S UPREME C OURT OF O HIO

6 shall attempt to influence, intimid ate, or hinder a public servant, party official, or witness in the discharge of the person’s duty.

{¶ 16} Steele proposes that a police offi cer cannot be prosecuted for the offense of intimidation, in violation of R.C. 2921.03(A), base d on actions taken by the police officer while conducting an interrogation. We disagree. {¶ 17} In our examination of R.C. 2921.03, we begin by noting that our “paramount concern is the legislative intent in enacting the statute.” State v. S.R. , 63 Ohio St.3d 590, 594, 589 N.E.2d 1319 (1992). We must give effect to the plain meaning of the words used in a statute, and we must not modify an unambiguous statute by adding or deleting words. Id. at 595. {¶ 18} R.C. Chapter 2921 criminalizes o ffenses committed against justice and public administration. “Chapter 2921 deals with acts tending to subvert the processes of democratic government, in cluding bribery, perjury, and related offenses, crimes which hamper law enforcement and the administration of justice, and peculation, conflict of in terests, dereliction of duty, and other offenses of public officials.” Committee Comment to R.C. Chapter 2921, 1972 Am.Sub.H.B. No. 511. Thus, R.C. Chapter 2921 was separately enacted within Ohio’s criminal code to focus on the special societal ills created by improper interference in the administration of justice or th e discharge of a public duty. {¶ 19} R.C. 2921.03 makes it unlawful for a person to knowingly take certain actions to influence, intimidate, or hinder a witness, a party official, or a public servant in the discharge of a duty. R.C. 2921.03(A). The ways in which it is illegal to exert such improper influence are by knowingly (1) using force, (2) unlawfully threatening harm against any person or property, or (3) using a materially false or fraudulent writing in any way with malice, bad faith, wantonness, or recklessness. Id. Thus, there are specified actions that are criminalized when committed against a specified set of people. However, thereJanuary Term, 2013

7 are no such limitations as to the identity or status of the person who might commit
the offense of intimidation. {¶ 20} By contrast, the General Assembly has enacted various criminal statutes that provide excep tions for certain categories of people. For example, statutes prohibiting the possession or distribution of controlled substances provide a number of exceptions for certain authoriz ed health professionals, police officers, and other parties. See, e.g ., R.C. 2925.02(B) (corrupting another with drugs); 2925.03(B) (trafficking offenses); 2925.11(B) (drug-possession offenses). The offense of coercion provides certain ex ceptions for prosecutors acting in good faith and in the interests of justice. R.C. 2905.12(B). Many weapons-possession statutes explicitly exclude authorized law-enforcement officers who are acting within the scope of their duties. See, e.g ., R.C. 2923.12(C)(1)(a) (carrying concealed weapons); 2923.121(B)(1)(a) ( possessing a firearm in liquor-permit premises); 2923.122(D)(1)(a) (possessing a deadly weapon in a school safety zone); 2923.17(C)(1) (possessing a dangerous ordnance). {¶ 21} We cannot add an exception to R.C. 2921.03 where there is none present. And by reading R.C. 2921.03 in light of the statutes in the preceding paragraph, we cannot presume that an exception to R.C. 2921.03 was intended when other statutes explicitly specify when police officers are exempted from
certain offenses. See S.R., 63 Ohio St.3d at 595, 589 N.E.2d 1319; State v. Cunningham , 113 Ohio St.3d 108, 2007-Ohio-1245, 863 N.E.2d 120, ¶ 20; State
v. Cook , 128 Ohio St.3d 120, 2010-Ohio-6305, 942 N.E.2d 357, ¶ 45. “It always has been deemed necessary to enact laws to compel performance of duty and to prevent corruption on the part of public of ficers. They are not attended by any special presumption that general langua ge in disciplinary measures does not
extend to them.” Donnelley v. United States , 276 U.S. 505, 516, 48 S.Ct. 400, 72 L.Ed. 676 (1928).S UPREME C OURT OF O HIO

8 {¶ 22} Further, it is true that police may draw from a wide variety of interrogation tactics and may even use certain kinds of deception to elicit a
confession. See State v. Wiles , 59 Ohio St.3d 71, 81, 571 N.E.2d 97 (1991); Oregon v. Elstad , 470 U.S. 298, 317, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). However, there is no authority for the contention that police officers may use physical force, unlawful threats of harm , or a materially false or fraudulent writing with malice, bad faith, wantonness, or recklessness as part of a legitimate interrogation of a suspect. Accordingly, we hold that a police officer may be prosecuted for the offense of intimidation when the police officer’s actions during an interrogation satisfy the elements provided in R.C. 2921.03. {¶ 23} The evidence submitted at Steele’s trial indicated that despite Steele’s repeatedly stated belief that R.M. was not involved in the robberies, Steele coerced R.M. into giving a fals e confession. Despite knowing that the confession was false, Steele filed a criminal complaint against R.M. using that false writing in an attempt to force R.M.’s mother to admit what he believed she knew about the robberies. Thus, Steele used a materially false writing in bad faith
to influence and intimidate a witness within the meaning of R.C. 2921.03(A).
We therefore affirm the First District’s conclusion that Steele’s intimidation conviction was supported by sufficient evid ence and was not against the manifest weight of the evidence. Abduction, Privilege, Police Officers, and Plain Error {¶ 24} The state proposes that in the c ontext of the offense of abduction, when a trial court provides a jury instruction defining “privilege” exactly as it is defined in R.C. 2901.01(A)(12) , the trial court’s failure to sua sponte provide additional, more specific instructions on “privilege” does not rise to the level of plain error. We agree. {¶ 25} R.C. 2905.02 provides:January Term, 2013

9 (A) No person, without privilege to do so, shall knowingly do any of the following: (1) By force or threat, remove another from the place where the other person is found; (2) By force or threat, restrain the liberty of another person
under circumstances that create a ri sk of physical harm to the victim or place the other person in fear.

{¶ 26} Thus, in order to convict a defe ndant for the offense of abduction,
the finder of fact must determine that th e defendant removed and/or restrained the victim by force or threat “without pr ivilege to do so.” R.C. 2905.02(A). “Privilege” is defined as “an immunity, license, or right conferred by law, bestowed by express or implied grant, ar ising out of status, position, office, or relationship, or growing out of necessity.” R.C. 2901.01( A)(12). A police officer has a right conferred by law to execute a warrantless arrest of any person who the police officer has reasonable cause to believe is guilty of certain enumerated offenses, including theft offenses and of fenses of violence. R.C. 2935.03(B)(1). A police officer has reasonable or probabl e cause to arrest when the events leading up to the arrest, “viewed from the standpoint of an objectively reasonable police officer, amount to” probable cause. Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Probable cause exists when
there are facts and circumstances within the police officer’s knowledge that are sufficient to warrant a reasonable belief that the suspect is committing or has
committed an offense. Beck v. Ohio , 379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), citing Carroll v. United States , 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925). If an arrest is made without probable cause, the arrest is constitutionally invalid. State v. Timson , 38 Ohio St.2d 122, 127, 311 N.E.2d 16 (1974).S UPREME C OURT OF O HIO

10 {¶ 27} It is undisputed that the trial c ourt provided accurate instructions
on all of the above terms and that it followed the corresponding statutory language virtually verbatim. The appellate court concluded that the trial court erred by not providing additional instruc tions sua sponte. Specifically, the trial court explained when probable cause exists and when it does not. It explained that a privilege to arrest exists when there is probable cause, but it did not explain that the privilege is not lost merely because probable cause was lacking. It is this
omission that the court of appeals found to be fatal. {¶ 28} Under normal circumstances, the consequence of an illegal arrest is
that evidence obtained therefrom is inadmissible at trial. State v. Henderson , 51 Ohio St.3d 54, 56, 554 N.E.2d 104 (1990), citing Wong Sun v. United States , 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). However, a police officer is not automatically stripped of statutory privilege and exposed to criminal liability if a court finds in hindsight that the officer made an arrest on less than probable cause. When looking at a police officer’s liability in the civil context, privilege is lost
when “a reasonable official would understa nd that what he is doing violates [a clearly established] right.” Anderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). We find this principle to be applicable to the context of a police officer’s authority to arrest, pursuant to R.C. 2935.03, and correspondingly, the officer’s “privilege” as defined in R.C. 2901.01(A)(12). Accordingly, a police officer does not lose the privilege to arrest merely because probable cause is lacking. However, the police officer loses the privilege to arrest when a reasonable police officer would unders tand that probable cause is lacking. {¶ 29} It would have been ideal for the trial court to provide additional instructions regarding the loss of privilege in the specific context of a police officer’s authority to arrest. However, it must be remembered that we are not looking for the ideal in this case. We ar e merely looking for the absence of plain error. There was no objection to the jury instruction in issue. “On appeal, a partyJanuary Term, 2013

11 may not assign as error the giving or the failure to give any instructions unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection.” Crim.R. 30(A). It is undisputed that Steele negotiated for and ag reed to the revised jury instructions provided by the trial court, that he lodge d no objections to the instructions related to the abduction charges, and that he ha s therefore forfeited all but plain error. {¶ 30} For a court to notice plain error, the error must be an obvious defect in a trial’s proceedings, it must have affected substantial rights, and it must
have affected the outcome of the trial. State v. Eafford , 132 Ohio St.3d 159, 2012-Ohio-2224, 970 N.E.2d 891, ¶ 11, citing State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306; State v. Lynn , 129 Ohio St.3d 146, 2011- Ohio-2722, 950 N.E.2d 931, ¶ 13. See also Crim.R. 52(B). Because there was no explicit case law or statutory guidance in Ohio on the standard of proving a police officer’s loss of privilege to arrest, it would be difficult to conclude that the trial
court’s failure to invent such an in struction constitutes an obvious error. Regardless, even when the minimum requirements have been met, a reviewing
court should still be conserva tive in its application of pl ain-error review, reserving notice of plain error for situations i nvolving more than merely theoretical prejudice to substantial rights. See State v. Long, 53 Ohio St.2d 91, 94, 372 N.E.2d 804 (1978). “Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” Id. at paragraph three of the syllabus. {¶ 31} Here, the appellate cour t concluded that the lack of an instruction on loss of privilege amounted to plain error because “[i]t relieved the state of its burden to prove all elements of a bduction beyond a reasonable doubt.” 2011- Ohio-5479 at ¶ 21, citing State v. Adams , 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 97. In Adams , we did note that relieving the state of its burden of proving an element of th e offense violates a defendant ’s right to due process.S UPREME C OURT OF O HIO

12 Id. However, we went on to hold in Adams that such an error in jury instructions is waived when there was no objection and when the outcome of the trial was not
affected. Id. at ¶ 100 and 102. We have long held that improperly reducing the state’s burden of proving an element of a crime is not plain error unless the outcome of the trial clearly would have been otherwise. State v. Cooperrider , 4 Ohio St.3d 226, 227-228, 448 N.E.2d 452 (1983); State v. Underwood , 3 Ohio St.3d 12, 14, 444 N.E.2d 1332 (1983); Long at paragraph two of the syllabus. {¶ 32} Due to the trial court’s failure to sua sponte provide additional instructions on “privilege,” the appellate court determined that the jury was in essence instructed that a police officer could be criminally liable any time an arrest is made on less than probable ca use. 2011-Ohio-5479 at ¶ 9. Certainly
such an instruction would be erroneous. But the trial court did not provide any
incorrect statements of the law in its in structions, and we cannot assume that the jury in fact made this improper inference. {¶ 33} By concluding that an erroneous instruction, by itself, constituted plain error, the appellate court did not co mplete its plain-error analysis. Instead, “an appellate court must review the instructions as a whole and the entire record to determine whether a manifest miscarriage of justice has occurred as a result of
the error in the instructions.” State v. Wamsley , 117 Ohio St.3d 388, 2008-Ohio1195, 884 N.E.2d 45, ¶ 17. The totality of the instructions and of the record in this case does not support a finding of plai n error, particularly when considering
Steele’s intimidation and a bduction charges together. {¶ 34} The facts underlying Steele’s charge for abduction were inextricably intertwined with those underlying the charges for intimidation. He took R.M. out of school in handcuffs, placed him in an interrogation room, and blatantly intimidated him with dire threats directed at his entire family, including his school-aged siblings. Steele admitted to school employees, R.M.’s mother, and the prosecutor that he knew that R.M. was not involved with the robberies.January Term, 2013

13 He coerced a confession from R.M., which he admittedly thought was false, and filed a criminal complaint against R.M. using that false confession. {¶ 35} In order to be convicted of knowingly filing a false writing in
satisfaction of the elements of the o ffense of intimidation, Steele needed to believe that R.M.’s confession was false, i.e., that R.M. had not committed the crime. If Steele believed that R.M. had not committed a crime, then a reasonable police officer in Steele’s position would ha ve understood that probable cause was clearly lacking. Thus, because Steele’s accusation against R.M. had to be knowingly false in order for the jury to find Steele guilty of intimidation, and because the jury did find Steele guilty of intimidation, there is nothing to indicate that the trial court’s failure to explain a higher standard of loss of privilege for police officers affected St eele’s convictions for abduction. Further, there is nothing in the record to support the pr oposition that Steele had anything even approaching probable cause to arrest when he took this youngster out of school in handcuffs. At the very best, there was the suspicion that the child’s mother’s car
had been used in the crime. No r easonable police officer could possibly categorize that as reasonable suspicion sufficient to satisfy the United States
Constitution. {¶ 36} Although we hold today that the trial court did not commit plain error in its failure to provide specific instructions for a police officer’s loss of privilege, we must stress that we are in no way attempting to tie the hands of police officers in their broad authority to arrest and detain suspects. Police officers must often act quickly and decisi vely, as a delay in response could have dire consequences or even constitute dereliction of duty. See Davis v. Scherer
, 468 U.S. 183, 196, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). Police officers performing their valuable and often dang erous duties cannot be made to fear criminal charges any time an arrest or detention is made with what turns out to be less than probable cause. Thus, our holding today would reach only the rareS UPREME C OURT OF O HIO

14 circumstance of a police officer depr iving a person of his or her liberty when a reasonable police officer would know that there is no probable cause supporting the detention, no matter how brief. {¶ 37} Because the trial court’s erroneous jury instruction did not rise to the level of plain error, we reverse the First District’s decision to reverse and
remand Steele’s abduc tion convictions.
Conclusion {¶ 38} We hold that the First District Court of Appeals correctly upheld Steele’s intimidation conviction, but incorrectly held that the definition of “privilege” provided by the Hamilton C ounty Court of Common Pleas constituted plain error. We therefore affirm in part and reverse in part the judgment of the court of appeals and remand the cause to the First District Court of Appeals for
consideration of the additi onal assignments of error that were mooted by its original holding. Judgment accordingly.
O’C ONNOR , C.J., and P FEIFER , L ANZINGER , K ENNEDY , and F RENCH , JJ.,

concur. O’D ONNELL , J., dissents and would affirm the judgment of the court of appeals.

____________________ Daniel J. Breyer, Special Prosecutin g Attorney, for appellant and crossappellee. Byron L. Potts & Co., L.P.A., and Glor ia L. Smith, for appellee and crossappellant. Timothy Young, Ohio Public Defender, and Francisco E. Lüttecke, Assistant Public Defender, in support of ne ither party on behalf of amicus curiae,
Ohio Public Defender.

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